The Long and Short of What Happens to Supreme Court Docket After Antonin Scalia’s Death

The unexpected death of Supreme Court Justice Antonin Scalia leaves not only a seat empty on the highest court in the land but also a series of questions for what it means for the schedule moving forward.

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Scalia is not the first justice to die while still on the court, but his death amid some of the pending cases facing the court this session means split decisions could have a direct impact on laws throughout the country.

How long will it take to replace Justice Scalia?

The two most recent confirmations – that of Justices Sonia Sotomayor and Elena Kagan – took roughly two and three months, respectively, but that may not be the case here.

With Senate Republicans speaking out almost immediately after Scalia’s death, vowing to block any nomination President Obama tries to have confirmed until after a new president takes office next year, the chances of a delay in this process seem more likely.

"I think it has become incredibly politicized," said Jessica Waters, the associate dean of the School of Public Affairs at American University in Washington, D.C.

"It’s quite possible that we have a vacancy on the court for over a year," she said.

What happens to the current session? Will it proceed as scheduled?

The court has arguments scheduled for three days next week. That is expected to move forward as scheduled, which will not be the first time the court is down a judge.

Waters, who specializes in constitutional law and reproductive rights law, said the more common reason for an eight-justice bench rather than the full nine is when justices recuse themselves because of a previous connection to the case. That was already scheduled to happen with an affirmative action case on the docket: Kagan had worked on a portion of that case about college admissions when she was U.S. solicitor general before being appointed to the Supreme Court.

Now that Scalia has died, it is more likely that there will be only seven justices involved in that particular case.

What happens if there is a tie on a case with eight justices?

While Scalia’s death and Kagan’s recusal means the headcount on the affirmative action case will go back to being an odd number, there are plenty of other big cases this year that could be left with a 4-4 split.

"If there is a 4-4 decision, the decision of the lower court stands, so the last court to hear the case stands, and that is certainly something that the court tries to avoid at all costs," Waters said.

"The big issue is legitimacy, because in any of these cases, if you have fewer justices or, in the case of a tie, where essentially a tie leaves the decision of the lower court … which means the Supreme Court does not really decide,” she said.

How could a tie mean that the law would stand in different ways in different parts of the country?

If a tie kicks the issue back to the circuit court of appeals that previously heard the case, Waters says, the lower ruling would only hold true in the jurisdiction of that U.S. Circuit Court.

"If a court of appeals decides a case, it only binds the courts in that circuit. If the Supreme Court doesn’t decide a case, you end up having fractured law across the country," Waters said.

"What ends up happening is we don’t have precedent set for the entire country," she said.

Waters said this could clearly affect any of the cases on the court’s docket this year, including cases on affirmative action, technology, the Affordable Care Act and abortion.

"The state of abortion jurisprudence, the state of abortion laws, would depend on where a woman lived, so the law could be one thing in the Fifth Circuit and something completely different in the Second Circuit," she said, explaining what might happen if that case ends in a tie vote.

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